City
and County of Denver District Court No. 15CR4899 Honorable
Brian R. Whitney, Judge
Beth
McCann, District Attorney, Katherine A. Hansen, Deputy
District Attorney, Denver, Colorado, for Plaintiff-Appellant
Megan
A. Ring, Colorado State Public Defender, Rachel K. Mercer,
Deputy State Public Defender, Denver, Colorado, for
Defendant-Appellee
OPINION
NIETO
JUDGE [*]
¶
1 The People appeal the trial court's dismissal of
charges against defendant, Jasmine Burlingame, based on
outrageous government conduct. We reverse and remand with
directions.
I.
Background
¶
2 Defendant alleged that after a night out drinking with a
coworker, she went with him to his home. She reported that
later that evening she was raped by his roommate. She
submitted to a Sexual Assault Nurse Examiner exam where
samples were taken from various places on her body. Police
investigators contacted the coworker and the roommate, both
of whom volunteered DNA samples which the investigators then
compared with the samples taken from defendant's body.
The results of the DNA test conclusively showed that it could
not have been the roommate who had sexual contact with
defendant, but rather that it was the coworker.
¶
3 Upon learning this, two prosecutors, an investigator from
the prosecutor's office, and a police detective decided
to interview defendant. Defendant was experiencing car
trouble, so they visited her at home. They brought a video
camera to record the interview and set defendant up on a
folding chair in the camera's frame. Out of the frame sat
defendant's mother, other female friends and family, the
prosecutors, and the investigators.
¶
4 On the video recording, the police detective informed
defendant that the DNA proved that it was the coworker, not
the roommate, who had sexual contact with her, contrary to
what she said had happened. Defendant became visibly upset
and began to cry. The prosecutors informed her that they
would have to drop the charges against the man she claimed
raped her, and they asked her if there was anything else she
would like to tell them. Defendant made statements such as
"I don't know what to say," and "I
don't understand how that is possible." She stated
that she had blacked out a lot of the incident, so her memory
was less than clear.
¶
5 After several more minutes of discussion, defendant, in
tears, told the investigators and prosecutors to leave, and
they did.
¶
6 Prosecutors charged defendant with two counts of attempting
to influence a public servant and one count of false
reporting.
¶
7 The trial court held a hearing where defendant argued, as
is relevant here, that the videotape of the interview should
be suppressed, and that the case should be dismissed because
the government's conduct was outrageous. Defendant had
also subpoenaed one of the prosecutors who was present for
the interview to testify at the hearing, which the trial
court allowed, denying the prosecution's motion to quash
the subpoena. During the hearing, the prosecutor, invoking
the work product privilege, objected to evidence that might
have shed light on the decision-making process that led the
district attorney's office to the decisions to interview
and file charges against the defendant.
¶
8 In an oral ruling, the trial court dismissed the case based
on a finding of outrageous government conduct. It did not
...